283 Ill. App. 3d 626 | Ill. App. Ct. | 1996
Nos. 2--95--0307, 2--95--0308, 2--95--0309 cons.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, ) Nos. 94--CF--2014,
) 94--CF--2017,
v. ) 94--CF--2020
)
LEROY RICE, ) Honorable
) Raymond J. McKoski,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Indictments filed on October 5, 1994, charged defendant, Leroy
Rice, with several counts of burglary. A plea negotiation was
agreed to on November 15, 1994. In exchange for the defendant's
plea of guilty to four counts of burglary (94--CF--2014 (two
counts); 94--CF--2017; 94--CF--2020), the State agreed to a cap of
six-year terms of imprisonment on all counts to which the defendant
pleaded guilty, with the sentences to run concurrently. Further,
on January 3, 1995, the State agreed to dismiss the seven remaining
charges of burglary. The trial court sentenced the defendant to
concurrent five-year terms of imprisonment. On February 2, 1995,
the defendant's motion to reconsider his sentence was denied. This
timely appeal followed.
On appeal, defendant raises one issue, namely, whether the
defendant's cause must be remanded for a new hearing on the
defendant's motion to reconsider his sentence.
In support of this contention, defendant asserts three bases
for remand, namely, (1) that, in light of Supreme Court Rule
605(b)(5) (145 Ill. 2d R. 605(b)(5)), defense counsel should have
been required to review the sentencing hearing transcripts; (2)
that he was not provided with a copy of his sentencing transcript,
in violation of Rule 605(b)(5); and (3) that his counsel's
certificate failed to comply with the exact requirements of Rule
604(d) (145 Ill. 2d R. 604 (d)).
Initially, we address defendant's contention that defense
counsel's failure to review the sentencing transcript is ground for
a remand. Defendant concedes that Rule 604(d) merely requires that
defense counsel review only the court file and the guilty plea
transcript, not the sentencing transcript, even if defendant
challenges only his sentence. Defendant argues that we should
reject this court's prior determination of the instant issue in
People v. Heinz, 259 Ill. App. 3d 709 (1994).
In People v. Heinz, this court wrote:
"Defendant acknowledges that the language of the rule
does not also require that defense counsel read the transcript
of the sentencing proceeding before going forward with his
motion to reconsider; nevertheless, he asks this court to read
such a requirement into the rule on the basis of 'symmetry.'
Thus, he argues that, just as the rule requires defense
counsel to examine the transcript of a guilty plea proceeding
as a condition precedent to a hearing on the motion to
withdraw his plea, so too should counsel be required to
examine the transcript of the sentencing hearing prior to a
hearing on the motion to reconsider the sentence. Defendant
cites no relevant authority for this court to read such a
requirement into the rule, and it is not a prerogative of this
court to amend a rule of our supreme court. We therefore must
decline defendant's invitation to do so." Heinz, 259 Ill.
App. 3d at 712.
We see no reason to reject this reasoning.
In his next argument, defendant initially points out that the
trial court did not provide him with a transcript of the sentencing
hearing prior to the hearing on the motion to reconsider the
sentence. He then argues that his access to the sentencing
transcript was crucial to enable him to communicate effectively
with counsel regarding the nature of his claims and their factual
basis.
In response, the State initially points out that defendant
cites no case law in support of this argument. Moreover, the State
contends that Rule 604(d) is primarily concerned with perfecting a
defendant's rights on appeal and the need to provide defendant with
the necessary transcripts by the time defendant pursues his appeal.
Our review of the relevant portions of Rules 604 and 605 does
not indicate to us that the transcript of the sentencing hearing is
required for defendant's use at the hearing on the motion to
reconsider the sentence.
Rule 604(d) provides in pertinent part:
"No appeal from a judgment entered upon a plea of guilty
shall be taken unless the defendant, within 30 days of the
date on which sentence is imposed, files in the trial court a
motion to reconsider the sentence, if only the sentence is
being challenged, or, if the plea is being challenged, a
motion to withdraw his plea of guilty and vacate the judgment.
*** If the defendant is indigent, the trial court shall order
a copy of the transcript as provided in Rule 402(e) be
furnished the defendant without cost. The defendant's
attorney shall file with the trial court a certificate stating
that the attorney has consulted with the defendant either by
mail or in person to ascertain his contentions of error in the
sentence or the entry of the plea of guilty, has examined the
trial court file and report of proceedings of the plea of
guilty, and has made any amendments to the motion necessary
for adequate presentation of any defects in those
proceedings." 145 Ill. 2d R. 604(d).
Further, Rule 605(b)(5) states in pertinent part:
"In all cases in which a judgment is entered upon a plea
of guilty, at the time of imposing sentence, the trial court
shall advise the defendant substantially as follows:
* * *
(5) that if he is indigent, a copy of the transcript of
the proceedings at the time of his plea of guilty and sentence
will be provided without cost to him and counsel will be
appointed to assist him with the preparation of the
motions[.]" 145 Ill. 2d R. 605(b)(5).
Given this language, we will not read into the rules the
requirement that the sentencing transcript must be furnished to
defendant prior to the sentencing hearing. To do otherwise would
be tantamount to engaging in rulemaking, a function which is solely
the province of our supreme court. See 134 Ill. 2d R. 3(A)(1)(a).
Defendant maintains that remand is necessary for a third
reason. He notes that, under Rule 604(d), defense counsel must
certify that he or she has made any amendments to the post-
sentencing motion that are necessary to present adequately
defendant's claims. Defendant contends that, in the appeal at bar,
counsel's certificate omits any reference to the "necessary
amendment" portion of the rule. However, defendant concedes that
this omission came to the trial court's attention and that defense
counsel stated on the record that she did not think any amendments
were required.
In response, the State notes that the same defense counsel
represented defendant through all phases of the trial court
proceedings. The State then asserts that it would put "form over
substance" to conclude that the subject omission warrants a
remand.
We find that the relevant language of the rule does not
support defendant's contention. In this case, the rule only
requires defendant's counsel to state that he or she "has made any
amendments" to the motion necessary for adequate presentation of
any defects in those proceedings. 145 Ill. 2d R. 604(d). This
portion of the rule makes no reference to situations such as this
in which defense counsel has thought it unnecessary to make any
amendments to the motion. Again, we will not read into the rules
"requirements" that are not explicitly stated.
We affirm the judgment of the circuit court.
Affirmed.
GEIGER and HUTCHINSON, JJ., concur.
